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St. Johns Riverkeeper, Inc. v. United States Army Corps of Engineers

United States District Court, M.D. Florida, Jacksonville Division

January 19, 2018




         THIS CAUSE is before the Court on Plaintiff's Motion for Preliminary Injunction and Memorandum of Law (Doc. 24; Riverkeeper Motion), filed on December 4, 2017, and Federal Defendant's Motion to Dismiss Counts I and II of Plaintiff's First Amended Complaint (Doc. 32; Corps Motion), filed on December 8, 2017. In the Riverkeeper Motion, Plaintiff St. Johns Riverkeeper, Inc. (Riverkeeper) seeks a preliminary injunction prohibiting Defendants from proceeding with a plan to dredge a portion of the St. Johns River until Defendant United States Army Corps of Engineers (Corps) “has satisfied its [National Environmental Policy Act (NEPA)] obligations.” See Motion at 1, 25. As directed by the Court, see Order (Doc. 28), Riverkeeper filed a supplement in support of its Motion on December 8, 2017. See Plaintiff's Supplement on Security Requirements in Support of its Motion for Preliminary Injunction (Doc. 30; Supplement). The Corps and Intervenor Defendant Jacksonville Port Authority (JaxPort) filed responses in opposition to the Riverkeeper Motion on December 14, 2017. See JaxPort's Memorandum of Law in Opposition to Riverkeeper's Motion for Preliminary Injunction (Doc. 33; JaxPort Response); Federal Defendant's Response to Plaintiff's Motion for Preliminary Injunction (Doc. 34; Corps Response). Riverkeeper filed a reply in support of its Motion on December 20, 2017. See Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Preliminary Injunction (Doc. 35; Reply).

         In the Corps Motion, the Corps moves to dismiss Counts I and II of the First Amended Complaint for Declaratory and Injunctive Relief (Doc. 23; Amended Complaint). In doing so, the Corps contends that the Court lacks subject matter jurisdiction over Counts I and II. Riverkeeper responded to the Corps Motion on December 22, 2017. See Plaintiff St. Johns Riverkeeper's Response to Defendant United States Army Corps of Engineers' Motion to Dismiss Counts I and II of Plaintiff's First Amended Complaint (Doc. 36; Riverkeeper Response). The Court heard argument on the Riverkeeper Motion and the Corps Motion at a hearing on January 4, 2018. See Minute Entry (Doc. 37). Accordingly, the Motions are ripe for review.

         I. Introduction

         Plaintiff, St. Johns Riverkeeper, Inc., is a nonprofit organization “dedicated to the protection, preservation, and restoration of the ecological integrity of the St. Johns River watershed for current users and future generations.” See Riverkeeper Motion, Ex. B: Affidavit of Lisa Rinaman (Doc. 24-2; Rinaman Aff.) ¶ 3. Riverkeeper “monitors the environmental quality of the St. Johns River and its tributaries and advocates for its protection and restoration.” Id. ¶ 4. One of the ways Riverkeeper works to protect and restore the St. Johns River is by ensuring that environmental laws are properly followed in connection with the River. Id. Riverkeeper also works to educate the public about the St. Johns River and its management by organizing boat trips for its members and others. Id. ¶ 5. The Jacksonville Port Authority joined this action as an Intervenor Defendant on July 10, 2017. See Order (Doc. 12). JaxPort “was created by legislation in 1963 to own and operate marine facilities in Duval County, Florida.” See JaxPort's Answer to the First Amended Complaint and Affirmative Defenses (Doc. 31) at 1 n.1. Pursuant to the JaxPort Charter, JaxPort is now a political body of the City of Jacksonville. Id.

         The Corps, in coordination with JaxPort, is currently proceeding with a plan to dredge a portion of the Jacksonville Harbor in the St. Johns River. As required by law, the Corps studied the environmental impacts of a deepening project and in April 2014 issued an environmental impact statement on the project. See April 2014 General Reevaluation Report II and Supplemental Environmental Impact Statement (A.R. at 298856; April 2014 Report).[1] The United States Congress authorized construction of the dredging project in 2014. Recently, JaxPort allocated funds to begin the dredging project and the federal government has appropriated funding for a portion of the project as well. The Corps is prepared to begin dredging within weeks, if not days.

         Riverkeeper initiated this action challenging the dredging project on April 7, 2017. See Complaint for Declaratory and Injunctive Relief (Doc. 1; Initial Complaint). In the Initial Complaint, Riverkeeper asserted six causes of action all of which challenged the sufficiency of the Corps' compliance with the requirements of the National Environmental Policy Act (NEPA) in connection with the dredging project and the April 2014 Report on that project. Specifically, Riverkeeper challenged the Corps' study of the proposed project's environmental impacts, the adequacy of its mitigation plan, and the economic analysis of the project's costs and benefits. The Riverkeeper also alleged that the Corps failed to adequately provide for public participation, and failed to prepare a supplemental environmental impact statement to address compliance with state water quality standards for turbidity. Riverkeeper did not request preliminary injunctive relief at the time of filing the Complaint. The Court held a status conference to discuss an appropriate schedule for this action on August 1, 2017. See Minute Entry (Doc. 18). Neither before nor during the status conference did Riverkeeper suggest any intention to seek an order prohibiting the start of dredging before the Court resolved the merits of its claims.

         On November 9, 2017, with leave of Court, Riverkeeper filed the Amended Complaint, which is the operative pleading before the Court. In the eight-count Amended Complaint, Riverkeeper continues to allege that the Corps failed to comply with the requirements of NEPA. In addition to the six areas of deficiency identified in the Initial Complaint, in the Amended Complaint, Riverkeeper has added two new claims in Counts I and II. In Count I, Riverkeeper alleges that the Corps has failed to prepare an environmental impact statement for the project it actually intends to complete, an 11-mile dredge. As such, Riverkeeper contends that the Corps must prepare an environmental impact study on the 11-mile project before it may commence with the dredging project. In Count II, Riverkeeper maintains that the Corps has failed to prepare a supplemental environmental impact statement addressing new information stemming from Hurricane Irma.

         Approximately one month after filing the Amended Complaint, Riverkeeper filed its motion seeking a limited injunction prohibiting the Corps from beginning any dredging until the Court resolves the merits of two of its claims. In doing so, Riverkeeper relies not on the alleged NEPA violations identified in the Initial Complaint, the deficiencies in the April 2014 Report, but instead argues that an injunction is warranted based solely on the new claims asserted in Counts I and II of the Amended Complaint. Thus, for purposes of resolving the instant Motions, only the claims in Counts I and II are presently before the Court. What is not before the Court at this time are Riverkeeper's challenges to the overall sufficiency of the April 2014 Report which formed the basis of the approval of the 13-mile dredging project. As such, the resolution of the instant Motions does not reflect on the merits of those claims or whether Riverkeeper will ultimately prevail on its contention that the April 2014 Report is deficient.

         II. Applicable Law

         A. NEPA

         i. Purpose

         The purpose of NEPA, the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., is to protect and promote environmental quality. See N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1540 (11th Cir. 1990). To achieve this goal, “NEPA establishes procedures that a federal agency must follow before taking any action.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). These procedures require an agency “to document the potential environmental impacts of significant decisions before they are made.” See Wilderness Watch & Public Emps. For Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1094 (11th Cir. 2004). In this way, NEPA aims to: “(1) ensur[e] that agency attention will be focused on the probable environmental consequences of [a] proposed action and (2) assur[e] the public that the agency has considered environmental concerns in its decision making process.” See N. Buckhead Civic Ass'n, 903 F.2d at 1540; Mainella, 375 F.3d at 1094 (explaining that NEPA requires agencies to document environmental impacts to ensure that “environmental issues are considered by the agency and that important information is made available to the larger audience that may help to make the decision or will be affected by it”). As the Supreme Court explained in Marsh:

NEPA promotes its sweeping commitment to ‘prevent or eliminate damage to the environment and biosphere' by focusing Government and public attention on the environmental effects of proposed agency action. 42 U.S.C. § 4321. By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.

See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989). No doubt, early consideration of environmental impacts allows “the public and other government agencies to react to the effects of a proposed action at a meaningful time.” Id.

         However, NEPA does not mandate that agencies achieve “particular substantive environmental results.” See id. (emphasis added). Unlike other statutes which may impose substantive environmental obligations on federal agencies, “NEPA merely prohibits uninformed-rather than unwise-agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). Thus, “‘[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.'” Van Antwerp, 526 F.3d at 1360 (quoting Robertson, 490 U.S. at 350); see also id. at 1361 (“[W]hether the federal agency ends up taking the ‘major Federal action' at issue has nothing to do with NEPA compliance; NEPA only requires that the agency follow a certain process in deciding whether to take the action.”); N. Buckhead Civic Ass'n, 903 F.2d at 1540-41. As such, the role of a reviewing court is to determine whether the agency “has satisfied the requirements of NEPA by taking a ‘hard look' at the environmental consequences of its actions, the court cannot interfere with the agency decision made within its statutory discretion.” See S. La. Envmtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011 (5th Cir. 1980);[2] see also Mainella, 375 F.3d at 1094 (“[S]o long as an agency has taken a ‘hard look' at the environmental consequences, a reviewing court may not impose its preferred outcome on the agency.”).

         ii. Procedures

         Before taking any action, NEPA requires an agency to first “determine whether the action to be taken constitutes a ‘major Federal action'-that is, an action ‘significantly affecting the quality of the human environment.'” See Van Antwerp, 526 F.3d at 1360 (quoting 42 U.S.C. § 4332(C)); see also 40 C.F.R. § 1508.18 (defining “major Federal action”).[3] To make this determination, an agency must prepare an environmental assessment (EA). See Sierra Club v. U.S. Army Corps of Eng'rs (Suncoast Pkwy Case), 295 F.3d 1209, 1215 (11th Cir. 2002); see also 33 C.F.R. § 230.10 (Corps regulation on Environmental Assessments). “The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact, ” commonly referred to as a “FONSI.” Suncoast Pkwy. Case, 295 F.3d at 1215; see also Dep't of Transp. v. Public Citizen, 541 U.S. 752, 757 (2004) (“The EA is to be a ‘concise public document' that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].'” (quoting 40 C.F.R. § 1508.9(a))). If the agency determines that the action will have no significant impact, it “issues a FONSI, which incorporates the EA and explains why the action will not have a significant effect on the human environment.” Suncoast Pkwy. Case, 295 F.3d at 1215 (citing 40 C.F.R. § 1508.13); see also 33 C.F.R. § 230.11 (Corps regulation governing a FONSI).

         However, if an agency determines in the EA that an action will have a significant effect, then the project is “major, ” and “the agency must prepare an environmental impact statement (‘EIS'), as described in 42 U.S.C. § 4332(2)(C).” Suncoast Pkwy. Case, 295 F.3d at 1215; see also Antwerp, 526 F.3d at 1360; 33 C.F.R. § 230.6 (Corps regulation on actions normally requiring an EIS). The EIS is considered the “heart of NEPA.” See Public Citizen, 541 U.S. at 757. Specifically, NEPA mandates that “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, ” a federal agency must prepare and include a “detailed statement” on:

(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

See 42 U.S.C. § 4332(2)(C)(i)-(v). According to the CEQ regulations governing the preparation of an EIS, the statement must provide a “‘full and fair discussion of significant environmental impacts.'” See Suncoast Pkwy. Case, 295 F.3d at 1215 (quoting 40 C.F.R. § 1502.1); see also 33 C.F.R. § 230.13 (Corps regulation governing the EIS). While these “action-forcing” procedures require agencies to “take a ‘hard look' at environmental consequences, ” they do not “mandate particular results.” See Robertson, 490 U.S. at 350 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).

         The preparation of the EA and subsequent issuance of a FONSI or an EIS, however, is not the end of an agency's obligations under NEPA. “In some cases, after an agency publishes a FONSI or an EIS, but before any action is taken, the proposed action changes, or the agency receives additional information.” Van Antwerp, 526 F.3d at 1360. Under those circumstances, the agency must “make an additional NEPA determination.” Id. The agency once again must take a “hard look” and determine “whether the changes create, or the information reveals, significant effects on the quality of the human environment not previously considered.” Id.; see Marsh, 490 U.S. at 385 (“[R]egardless of its eventual assessment of the significance of this information, the Corps had a duty to take a hard look at the proffered evidence.”). Significantly, “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.” See Marsh, 490 U.S. at 373. Such a requirement would “render decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Id. Thus, it is only where “new, significant effects are shown, ” that an agency must prepare a supplemental environmental impact statement (SEIS). Van Antwerp, 526 F.3d at 1360.

         The Eleventh Circuit summarizes the duty to supplement as follows:

[i]f, after the original EIS is prepared, the agency ‘makes substantial changes in the proposed action that are relevant to environmental concerns, ' or if there are ‘significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, ' the agency is required to prepare a supplemental environmental impact statement (SEIS).

Suncoast Pkwy. Case, 295 F.3d at 1215 (quoting 40 C.F.R. § 1502.9(c)(1)). As such, “[t]he standard for determining when an SEIS is required is ‘essentially the same' as the standard for determining when an EIS is required.” Id. at 1215-16 (quoting Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. Unit A July 1981)); see also Marsh, 490 U.S. at 374. A supplement is necessary “if the new information is sufficient to show that the remaining action will ‘affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered . . .” by the federal agency. See Marsh, 490 U.S. at 374 (quoting 42 U.S.C. § 4332(2)(C)); see also Suncoast Pkwy. Case, 295 F.3d at 1216.

         B. Administrative Procedure Act (APA)

         “Because NEPA does not provide for a private right of action, plaintiffs challenging an agency action based on NEPA must do so under the Administrative Procedure Act.” Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1173 (11th Cir. 2006) (internal quotation omitted); see Van Antwerp, 526 F.3d at 1359-60; Suncoast Pkwy. Case, 295 F.3d at 1216. The APA authorizes judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . .” See 5 U.S.C. § 704. Significantly, § 704 provides that “[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.” Id. As such, a court lacks jurisdiction to review agency action “when the administrative action in question is not ‘final' within the meaning of 5 U.S.C. § 704.” See Nat'l Parks Conservation Ass'n v. Norton (Stiltsville Case), 324 F.3d 1229, 1236 (11th Cir. 2003).

         The Supreme Court addressed the contours of “final agency action” in Bennett v. Spear, and instructed that:

As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency's decisionmaking process, -it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined, ” or from which “legal consequences will flow.”

Bennett, 520 U.S. 154, 177-78 (1997) (internal citations omitted) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) and Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). In contrast, a non-final agency action is one that “‘does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.'” Stiltsville Case, 324 F.3d at 1237 (quoting Am. Airlines, Inc. v. Herman, 176 F.3d 283, 288 (5th Cir. 1999)).

         While final agency action is reviewable under the APA, an agency's “failure to act” is sometimes, but not always, remediable under the APA. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61 (2004). The provision of the APA governing failures to act is § 706(1), which provides that a “reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.” See 5 U.S.C. § 706(1); see also Norton, 542 U.S. at 62. Indeed, “an administrative agency cannot legitimately evade judicial review forever by continually postponing any consequence-laden action and then challenging federal jurisdiction on ‘final agency action' grounds.” See Stiltsville Case, 324 F.3d at 1239. However, “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton, 542 U.S. at 64. The APA “empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act, ' or ‘to take action upon a matter, without directing how it shall act.'” Id. (citation omitted). “Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be.” Id. at 65.

         In reviewing a final agency action, a court must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or found to be] without observance of procedure required by law.'” See Van Antwerp, 526 F.3d at 1360 (alteration in original) (quoting 5 U.S.C. § 706(2)); see also Suncoast Pkwy. Case, 295 F.3d at 1216 (“Challenges brought under [NEPA] are reviewed by the arbitrary and capricious standard, as defined by the [APA].”). The Eleventh Circuit has instructed that this standard of review is an “‘exceedingly deferential'” standard and the court's only role is to “ensure that the agency came to a rational conclusion, ‘not to conduct its own investigation and substitute its own judgment for the administrative agency's decision.'” See Van Antwerp, 526 F.3d at 1360 (quoting Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996) and Preserve Endangered Areas of Cobb's History, Inc. (“PEACH”) v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir. 1996)). Nonetheless, in the context of a NEPA challenge the court must “look beyond the scope of the decision itself to the relevant factors that the agency considered” and “ensure that the agency took a ‘hard look' at the environmental consequences of the proposed action.” See Suncoast Pkwy. Case, 295 F.3d at 1216; see also Marsh, 490 U.S. at 378 (explaining that while the arbitrary and capricious inquiry “must be searching and careful, ” the “ultimate standard of review is a narrow one” (internal quotations omitted)). As such, the court must consider “not only the final documents prepared by the agency, but also the entire administrative record.” Suncoast Pkwy. Case, 295 F.3d at 1216.

         In the Suncoast Parkway Case, the Eleventh Circuit elaborated on the “hard look” requirement as follows:

An agency has met its “hard look” requirement if it has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” The court will overturn an agency's decision as arbitrary and capricious under “hard look” review if it suffers from one of the following: (1) the decision does not rely on the factors that Congress intended the agency to consider; (2) the agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise.

Id. at 1216 (internal citation omitted) (alterations in original) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Notably, “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” See Marsh, 490 U.S. at 378.

         Courts also apply the arbitrary and capricious standard when reviewing an agency's decision not to prepare an SEIS. See id. at 377-78. As above, “the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'” Id. at 378 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Significantly, in this context, “courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance-or lack of significance-of the new information.” Id. Ultimately, the challenging party bears the burden of showing by a preponderance of the evidence that the agency failed to comply with NEPA's procedural requirements. See Citizens for Smart Growth v. Sec'y of Dep't of Transp., 669 F.3d 1203, 1211 (11th Cir. 2012).

         III. ...

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